Supreme Court To Hear Michigan Affirmative Action Case

After the Supreme Court ruled a decade ago that race could be a factor in college admissions in a Michigan case, affirmative action opponents persuaded the state’s voters to outlaw any consideration of race.

Now, the high court is weighing whether that change to Michigan’s constitution is itself discriminatory.

It is a proposition that even the lawyer for civil rights groups in favor of affirmative action acknowledges a tough sell, at first glance.

“How can a provision that is designed to end discrimination in fact discriminate?” said Mark Rosenbaum of the American Civil Liberties Union. Yet that is the difficult argument Rosenbaum will make on Tuesday to a court that has grown more skeptical about taking race into account in education since its Michigan decision in 2003.

A victory for Rosenbaum’s side would imperil similar voter-approved initiatives that banned affirmative action in education in California and Washington state. A few other states have adopted laws or issued executive orders to bar race-conscious admissions policies.

Black and Latino enrollment at the University of Michigan has dropped since the ban took effect. At California’s top public universities, African-Americans are a smaller share of incoming freshmen, while Latino enrollment is up slightly, but far below the state’s growth in the percentage of Latino high school graduates.

For the second time in a decade, Michigan finds itself in the middle of a debate over affirmative action. In 2003, the Supreme Court ruled that Michigan's colleges could consider race in college admissions. Then in 2006, Michigan voters approved a constitutional amendment banning the consideration of race. Then a Michigan court disagreed with the voters. And now, the issue is back at the Supreme Court, which will hear arguments tomorrow. Michigan's attorney general facing off against the coalition defending the use of affirmative action.

Micheline Maynard is a former Detroit bureau chief for the New York Times, and she's written about this case for Al Jazeera America. Micki, welcome to HERE AND NOW.

MICHELINE MAYNARD: Hi, Robin.

YOUNG: And tell us more about the plaintiffs in the case. What are they arguing because it's interesting, especially on those defending the use of affirmative action. It's not as much on the basis of fairness.

MAYNARD: No. This is an interesting case because it's not actually on whether affirmative action is valid. It's whether the voters can make a decision affecting the use of affirmative action. The plaintiffs are basically saying, look, anybody else with the special part of the university, children of alumni, athletes, can have that used as criteria for admission, but people who are black or of other ethnic backgrounds cannot. So if my dad gave a lot of money and there's a building named after him, that gives me an edge in admissions over somebody who might come from the inner city of Detroit and doesn't have that kind of an edge.

YOUNG: So they're saying that other groups are allowed to use some special nature for admission?

MAYNARD: Right. So this puts special burden on people who are African-American and of other backgrounds that other groups don't have, and that's the gist of their argument.

YOUNG: What is the other side saying?

MAYNARD: The other side says, well, it was up to voters, and voters passed what was called Proposal 2 here in Michigan, and its amended the Constitution. And the State Attorney General Bill Schuette, who will lead the case before the court says, I'm honor-bound to uphold the Constitution.

YOUNG: Well - but people like Schuette - stay with him for a second - the attorney general, have also spoken about improving education for minority students across the state so that they can better win admissions in the blind testing.

MAYNARD: Exactly.

YOUNG: Is that - but does that kind of argument going to be part of their argument before the court?

MAYNARD: That is the center of their argument before the court. But the point is that he's saying, we have to list this above a debate over affirmative action, make it a priority to improve education. The essential legal ground here is what are voters allowed to do? And in this case, the Sixth Circuit Court of Appeals has basically overturned Proposal 2. And now it's up to the Supreme Court to decide who was right, voters or the Sixth Circuit Court of Appeals.

YOUNG: What are the schools said? Because if I understand correctly, some of the schools are part of the case, are part of this coalition, defending the use of affirmative action. So what are they saying?

MAYNARD: So, a couple of the plaintiffs are professors at the University of Michigan. And you basically have them saying, look, we don't have a campus that has the same atmosphere as the surrounding areas. If you think about Michigan, the state is about 14 percent African-American. The city of Detroit down the road is 85 percent African-American. But now, admissions of African-Americans at the University of Michigan are down to about 4 percent, which is down roughly 30 percent from where they stood before the Supreme Court ruling.

YOUNG: We're understanding that the Michigan Law School, for instance - the University of Michigan Law School, this past fall, there were just 14 African-Americans of the 315 students admitted. And the professors are saying, this is not a good way to train students. This isn't the world they're going to function in once they are out of school.

MAYNARD: That's a very good point. So you - if you look at the University of Michigan Law School, it's an absolutely beautiful set of buildings. It looks like the Cambridge campus in England. And that gives you the idea of this old school, all-white, kind of an elite institution. And unfortunately, because of Proposal 2, because the law school can no longer use race as a criteria in admissions, its pretty much gone back to a mostly white, with some Asian-American law school. And that just doesn't reflect the - that's what the school says. It doesn't reflect the world in which this people will be practicing law.

YOUNG: Well, Micki, help us with this though because if the Supreme Court does strike down the voter-approve ban in Michigan, what does that mean? Because that voter-approved ban came about because of the last Supreme Court decision, so it seems as if a state has the right to at least try to overturn a Supreme Court decision.

MAYNARD: Right. So at the moment, if the court were to basically agree with the Sixth Circuit decision, which struck this down, essentially, you will have other groups pop up, I think, and try to frame these initiatives so that they fit within the law. But it could be a very interesting situation. If the court basically says, nope, you know, the citizens of Michigan decided this is fine, you could definitely have other initiative in other states that just go right after affirmative action.

YOUNG: Yeah. And we know that the Supreme Court had a very narrow ruling on an affirmative action case at the University of Texas. They said then that if there is no other way to ensure diversity, racial preference is allowed. Do you have a sense of what they might do?

MAYNARD: I don't. And here's the situation. Justice Kagan has recused herself from this case. So you have - I think a lot of legal scholars would've said, oh, it'll be 5-4, and the court will agree with the Sixth Circuit and they'll strike it down. Now, a 4-4 tie means that the judgment of the Sixth Circuit Court, which struck down Proposal 2, would stand. And so you'll have folks on the court who say no, we don't want to see that situation, and they're going to be probably looking for a way to get one other justice to their side. But this is going to be a really, really interesting decision.

YOUNG: And as we said, arguments start tomorrow, so we will follow that. Meanwhile, Micki, a much less serious but passionate topic we just want to touch on briefly. You're there in Detroit. We're in Boston. Last night one of our Red Sox made a big play. One of your Tigers made a valiant effort to stop it. Let's listen as the Red Sox were just stinking up Fenway Park, down four runs, when David Ortiz, Big Papi, steps to the plate.

(SOUNDBITE OF SPORTS BROADCAST)

UNIDENTIFIED MAN: Bases loaded. Two out. Hard hit into right. Back at the wall. Tie game.

YOUNG: Oh, I know this is painful for you, Micki. The Sox go on to win 6-5, series tied up. But can we say your Torii Hunter, the Tigers player, has a lot of new fans here in Boston for how he went up over the bullpen while - to try to catch that ball.

MAYNARD: Right. Torii Hunter is a really tough guy and he's - I think he's 38 but he feels like he's 26. And he has really, really, really revived the Tigers' spirits. He's one of those players that's a leader in the clubhouse, and lots and lots of enthusiasm out in right field. Now, I have been a baseball fan long enough to know that if the bases are loaded and Big Papi comes up to the plate, something bad is going to happen, not for the Red Sox but for the opposing team. I've actually hit - seen him in person hit walk-off homeruns against the Tigers. So when that happened, I just - it's really hard to be a journalist and a baseball fan, Robin.

(LAUGHTER)

YOUNG: But you're sticking with your Tigers, and we don't blame you. Micki Maynard, thanks so much for weighing on all sorts of things.

MAYNARD: My pleasure. Thanks a lot.

YOUNG: Back in a minute. HERE AND NOW. Transcript provided by NPR, Copyright NPR.